It's the best system in the U.S., many agree, but they wonder if it has to cost so much
by Nancy McCarthy
Dues and the expense of the State Bar's discipline system are key issues in the upcoming plebiscite on the bar's future. Mandatory fees attorneys must pay to practice in California are among the highest in the nation, and discipline consumes the lion's share (71.3 percent) of that amount.
But, say the bar's discipline gurus, you get what you pay for. When compared with other states with large numbers of attorneys, California's discipline operation stacks up well.
"It remains the prototype of a modern discipline system," says Fran Bassios, the bar's chief deputy trial counsel, "a combination of professional, volunteer and public participation which serves the public and which provides many options for the members."
In 1989, the American Bar Association appointed the McKay Commission to evaluate lawyer discipline nationwide. By the time its recommendations were issued two years later, the California bar already had implemented most of them.
Key among those were a discipline system staffed by professionals with involvement of volunteers, adequate funding and staffing, and a broad array of programs to assist errant attorneys.
The commission recommendations remain the standard by which most discipline systems are judged; according to experts in the field, California meets or exceeds most of the standards.
The system is staffed by paid professionals; the State Bar Court and chief prosecutor are independent; funding and staffing are adequate; and the process is generally open to the public.
It provides fee arbitration, mediation and a client protection fund as well as programs to assist attorneys, such as substance abuse counseling and law practice management.
Out in front
"California is always way out ahead," says Mary T. Robinson, head of the Illinois Attorney Registration and Disciplinary Commission. "It has a right to tout its system as being in the forefront."
One key recommendation - regulation of the profession by the judiciary - has not been adopted. The California bar handles all attorney discipline in the state.
However, the bar acts under the auspices of the Supreme Court, which appoints bar court judges and approves Rules of Professional Conduct. In addition, the high court can review the bar's disciplinary recommendations, although it rarely does so.
Sen. Quentin Kopp (I-San Francisco), author of the upcoming vote on whether to abolish the mandatory State Bar, has suggested comparing California's discipline system with those of large states.
California clearly has high bar dues and an expensive discipline system. But it also is the largest state, with the most residents and the most attorneys. With a well-publicized toll-free complaint line, the State Bar last year received more than 128,000 calls and investigated more than 6,000 consumer complaints about attorneys.
"The reason the dues are so high is because when the legislature ordered us to get rid of the tremendous backlog several years ago, the entire discipline system was looked at and some monumental changes were made," explains Maury Evans, chair of the Board of Governors discipline committee.
The largely volunteer-operated system was abandoned and replaced with an operation staffed with full-time professionals. The State Bar Court was created to adjudicate cases and relieve the Supreme Court of that burden.
"The backlog is under control. We have looked very closely at the system in the past 18 months and made significant changes," Evans added. "One of the changes was to reduce the discipline budget by $1.5 million last year."
Systems everywhere differ
It is difficult to compare discipline systems because they are so different. Some are professional and some are run primarily by volunteers; they prosecute different types of conduct and have differing standards of misconduct; fees vary widely and pay for vastly different services. Some systems operate as an agency of a state supreme court and others are run by the state bar association.
To the extent comparisons can be made, California's discipline system appears to be more efficient and cost effective.
The Prairie State has a voluntary bar association, with dues of $220. However, all of Illinois' 69,000 attorneys must pay an annual fee of $140 to the Attorney Registration and Disciplinary Commission, which administers discipline. The fee has remained the same since 1988.
Illinois has a discipline system similar to what California had 15 years ago. After initial investigation by professional staff, a discipline matter is handled by inquiry and hearing panels made up of volunteer attorneys.
In 1994, 109 attorneys received some sort of formal discipline and last year, 146 were disciplined, well under 1 percent of the total number of attorneys in the state.
By comparison, California, with nearly 150,000 lawyers in 1995, formally disciplined approximately 600 attorneys and accepted the resignations of another 100 or so who faced charges.
That means that California, with more than twice the number of attorneys as Illinois, disciplined five times as many lawyers.
Bassios says by analyzing "like kind" work done by the Illinois and California systems, "California is significantly more productive."
Robinson said she believes that having a fully professional staff helps eliminate delays in the system. "To that extent, I think the California model is the best model."
But she also prefers volunteer adjudicators to a professional court. "I personally like having active practitioners involved in resolving cases," she says. "I like the fresh perspective."
Robinson went on to say that a voluntary bar association is unable to provide many of the services an integrated bar can offer. "We don't review and draft legislation," she says. "We don't have mandatory fee arbitration, no trust fund accounts, no auditing, the IOLTA program is separate from us and continuing education is just starting."
New York does not have a mandatory bar, but its 130,000 attorneys pay $300 every other year to the Office of Court Administration. Sixty dollars goes to a client protection fund and the remainder is deposited in an "attorney licensing fund." However, about 29 percent of that money goes into New York State's general fund and is not used for discipline.
Responsibility for attorney discipline is vested in the appellate division of the state Supreme Court. The appellate division is divided into four departments, each with its own discipline system, rules and procedures. One of the departments is further divided, so there actually are six grievance committees in the state.
For the most part, discipline is handled by volunteers, both lawyers and nonlawyers. About 280 attorneys are disciplined annually.
In addition to funding problems, there is no uniform standard for determining when to file formal charges against a lawyer.
A report issued in November to the chief judge recommended that the appellate divisions adopt a uniform standard for determining when formal disciplinary charges should be filed.
The report also recommended mandatory CLE, an ethics institute, expanded lawyer referral services, mediation, mentoring and monitoring programs. But it did not address financial problems or recommend professionalizing the largely volunteer system.
"When you compare New York with California, there is a gross disparity and we are remarkably making do with much less," says Frank Rosiny, chair of the New York State Bar Association's Committee on Professional Discipline.
He agrees that a professional staff is "absolutely the way to go" if there is money to fund it. But he thinks California suffers to some extent from overkill and overfunding.
"Tell that to the client who has suffered a monetary loss, or the client who can't reach his attorney or the client whose case was dropped without proper notification," responded California board member Evans. "To adequately afford due process to the attorneys in this state and at the same time protect the public, there is going to be a significant cost."
Despite New York's shortcomings, Rosiny says about two-thirds of the state's attorneys expressed satisfaction with the system in a 1994 survey.
"This is a system which is working, working efficiently, working with the support and confidence of the bar and doing it with 15 percent of the dollars budgeted per capita that California budgets for attorney discipline," he says.
"Could we do better with more money? You bet. But you have to be careful as you add dollars that you're not just increasing budgets. You have to budget for need, not somebody's bureaucratic empire.
"That's part of the danger of having funds available through an integrated bar association."
Just under half of New Jersey's 57,828 attorneys belong to the voluntary state bar. But with the exception of attorneys in practice less then three years, all of them must pay an annual registration fee of $175. Of that, $50 goes to the client protection fund and the remainder to "ethics," which includes discipline and fee arbitration.
Last year, a total of 220 attorneys were disciplined; the total was 136 in 1994. The jump is a result of a restructuring ordered by the Supreme Court, says Dave Johnson, head of the state's Office of Attorney Ethics.
In addition, a small group of fulltime investigators was hired to tackle the case backlog. "They definitely made a difference and were really able to dispose of a tremendous number of cases, relatively speaking," Johnson said.
Paying the lawyers
The added staff of seven investigators, one supervisor and one attorney disposed of 248 of the 343 cases assigned to them in 3 1/2 months, Johnson said. That compares with an average of 12.5 months for the average case in the second half of 1995 statewide.
"Obviously, there are benefits to having (paid) lawyers involved," he said.
Historically, 17 volunteer "district ethics committees" received, investigated and tried complaints against lawyers with the blessing of the state bar. In 1993, a Supreme Court commission issued 18 recommendations to make the system work faster and with more credibility.
An official comparison
When the State Bar rebutted the recommendations, the Supreme Court hired New York University ethics expert Steven Gillers to compare New Jersey lawyer discipline with California.
"The New Jersey system does not stand up well to its California counterpart," Gillers concluded.
In his report, Gillers found that the volunteer system was not able to handle the volume of matters it faced. In terms of timeliness, efficiency and cost-effectiveness, he said, California far outstripped the New Jersey system.
Following much debate, the New Jersey Supreme Court last July announced changes to the system. But on the controversial issues of professionalizing and centralizing the system, it compromised and left in place local district ethics committees which receive complaints. Volunteers continue to prosecute cases, but the paid investigators now handle the early investigative stage.